INTRODUCTORY
PLATFORM
Arabesque AI Ltd (Arabesque, We, Us, Our) provides Users with the Portfolio Dragon Platform (the Platform) enabling Users to enhance a chosen portfolio with the use of artificial intelligence (AI) and to construct customized model portfolios. You (You, Your) wish to use the Services for internal non-commercial evaluation of the Services or the Paid Services in your business operations. We agree to provide, and you agree to use, the Services subject to the terms and conditions of this Agreement and, if you choose to become a Client and use the Paid Services, we agree to provide, and you agree to use, the Paid Services subject to the terms and conditions of this Agreement. Each of Arabesque and Client is a Party and together, the Parties.
This Agreement governs access to and the use of the Platform, including sub-websites as well as materials, documentation, services, products or underlying data herein, operated by Arabesque and its affiliates. Users are granted a right of use in accordance with this Agreement and undertake to comply with this Agreement. By using the Platform, Users accept and agree to this Agreement. Users who do not accept and agree to this Agreement may not use the Platform.
This Agreement governs the use of the Platform. Products and services provided by a company of the Arabesque Group may also in addition be subject to their own terms and conditions, rule, policies and procedures (together Additional Terms). Accordingly, Users may be asked to accept Additional Terms when accessing specific sub-websites. If and to the extent that the Additional Terms or other more specific terms of use conflict with this Agreement, then the Additional Terms will prevail.
PRIVACY AND COOKIES
Arabesque takes the privacy of Users of the Platform seriously and is concerned to protect Users' personal data. Therefore Arabesque will only use the personal information of Users as set out in the Arabesque Privacy Policy.
Arabesque use cookies, small text files transferred to your browser by our website, when Users visit the Platform as outlined in the Arabesque Cookie Policy.
THIRD PARTY SITES
You acknowledge that the Services and Paid Services may enable or assist you to access the Platform content of, correspond with, and purchase products and services from, third parties via third-party websites. Links on the Platform to websites provided by third parties are provided for your convenience only and you may access them at your own risk.
We do not review or update third-party websites or information contained therein. We are not responsible for any third party services accessible via such websites and make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not us. Arabesque has no control over the contents of those sites or resources, and accepts no responsibility for any loss or damage that may arise from your use of them. Such third party websites are subject to the terms and conditions of each such third party and are not under our control. We recommend that you refer to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. We do not review, monitor, endorse or approve any third-party website nor the content of any of the third-party website made available via the Services and Paid Services.
COMPLIANCE
CLASSIFICATION
The Services or Paid Services are intended for you as a Professional Client or an Eligible Counterparty (both as defined by the FCA) and you have confirmed that you are either a Professional Client or an Eligible Counterparty.
We are required to categorize you as either a Professional Client , an Eligible Counterparty, or a Retail Client, within the meaning of the FCA's rules so that, when providing the Services or Paid Services, we can provide the level of information, services and protection that is appropriate to and consistent with your categorisation.
You must inform us if you have not been categorized correctly and if any change occurs which could affect your categorisation as a Professional Client or an Eligible Counterparty. If we become aware that you no longer fulfil the required criteria which made you eligible to be categorized as a Professional Client or an Eligible Counterparty, we may recategorize you in accordance with specified criteria under FCA rules. This may result in us not being able to provide you with the Services or Paid Services (or any part thereof).
You may request to be treated as a Retail Client. If we agree to recategorize you as a Retail Client, we will no longer be able to provide you with the Services or Paid Services (or any part thereof). A copy of the schedule of protections afforded to different types of clients is available from us upon request.
INVESTOR INFORMATION
The Platform, including sub-websites, is intended solely for the use of professional clients or eligible counterparties and is not for retail clients within the meaning of FCA Handbook Rules.
The Platform is reserved exclusively for (a) non-U.S. Person (within the meaning of Regulation S under the U.S. Securities Act of 1933, as amended (the `Securities Act`)), (b) any persons acting on behalf of a U.S. Person and (c) any persons not located within the United States (within the meaning of Regulation S under the Securities Act).
Not an offer: The information on the Platform is provided for information only and does not constitute, and should not be construed as, investment advice nor a recommendation to buy, sell or otherwise transact in any securities or investment including investment funds managed by any authorised entity within the Arabesque Group. Any such offer or solicitation will be made only by means of an official offering (document) relating to a particular fund or investment management contract and only in those jurisdictions where permitted.
Certain investments give rise to substantial risk and are not suitable for all investors. Arabesque is not, by virtue of making the information on the Platform available to you, acting as your advisor, investment manager, or fiduciary. Your access to the Platform has been granted on the basis that you have the capability to independently assess investment risk and will exercise independent judgment in evaluating investment decisions. Any decisions you make to invest in any security or other instrument discussed on this Platform will be based solely on your own independent evaluation of your financial circumstances, investment objectives, risk tolerance, liquidity needs and any other factors that you deem relevant. Arabesque does not and will not assess whether any given decision is suitable for you based on your circumstances. In this respect, the contents of the Platform does not constitute personal recommendations.
Nothing on this Platform is intended to be, and you should not consider anything on this Platform to be investment, accounting, tax or legal advice. You should consult an attorney or tax professional regarding your specific legal or tax situation.
PAST PERFORMANCE AND RISKS
WARRANTIES AND GUARANTEES
Arabesque believes that the information which may be viewed on the Platform is accurate as at the date of publication. However no assurance, guarantee, or representation is made of the accuracy or currentness of the data and/or contents contained in the Platform. To the fullest extent permitted by law, Arabesque does not warrant and hereby disclaims any warranty as to the accuracy, correctness, reliability, currentness, timeliness, non-infringement, title, merchantability or fitness for any particular purpose of the contents of the Platform. Arabesque also disclaims any warranty that the contents available through the Platform or any functions associated therewith will be uninterrupted or error-free, or that defects will be corrected or that the Platform and the server is and will be free of all viruses and/or other harmful elements.
Use of the Platform is at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the download of any material. The entire risk arising out of the use or performance of the Platform remains with you.
THIRD PARTY INFORMATION
Although information contained on the Platform obtained from third party sources is believed to be reliable for the purposes used herein, Arabesque does not make any representations as to the accuracy or completeness thereof and none of Arabesque or its affiliates accepts any responsibility for such information.
Links on the Platform to websites provided by third parties are provided for your convenience only and you may access them at your own risk. Arabesque does not make any representation as to the accuracy or completeness of such websites and will not review or update such websites or information contained therein. Arabesque has no control over the contents of those sites or resources, and accepts no responsibility for any loss or damage that may arise from your use of them.
CONFIDENTIALITY
CONFIDENTIALITY
The Parties undertake to maintain the confidentiality of Confidential Information, save for the Parties' entitlement to disclose such Confidential Information: (a) to the extent necessary for the execution of the Agreement; (b) to fulfil legal requirements; or (c) to meet requests of any court or regulatory agency or authority.
In case of any disclosure pursuant to the above clause 22, the Party that discloses the Confidential Information is obliged to communicate to the other Party the name of the entity to which the Confidential Information will be or has been disclosed, the Confidential Information in question, and the basis of the request where this is permitted by the regulatory provisions applicable to the Party who communicates such Confidential Information.
On termination or expiry of this Agreement, each Party shall, at the request of the other Party:
a) destroy or return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party's Confidential Information; and
b) erase all the other Party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third Parties (to the extent technically and legally practicable), provided that the Parties may keep one copy of all data for regulatory reasons.
The Parties agree that the confidentiality obligations set out in the above clauses 22-24 shall remain in force indefinitely following the termination of this Agreement for whatever reason.
INTELLECTUAL PROPERTY AND DATA
TRADEMARKS
"Arabesque" or "Arabesque AI" and other words or symbols on the Platform that identify Arabesque or Arabesque AI products and services are product and service marks of Arabesque or Arabesque AI respectively. Other words or symbols in this document that identify other parties' goods or services are the trademarks or service marks of those other parties.
INTELLECTUAL PROPERTY
The Services and all Intellectual Property Rights associated with or comprised in any of the Services, Paid Services or the data or information included therein (including Intellectual Property Rights subsisting in any models, feed formats, software, templates, questionnaires or materials forming part of the Services, all enhancements, modifications, improvements or additional services applicable thereto and all documentation, computer programs, systems, customizations, enhancements, websites, any information about your (and an Authorized User's) interaction with the Platform and the metadata of such interactions and submission to us of any feedback, ideas, suggestions, documents and/or proposals with regards to the Services and/or Paid Services, excluding, however, Client Data), are, in each case, our exclusive property and shall not be considered works for hire. You acknowledge that, as a reasonable protection of the proprietary rights in the Services and Paid Services and to avoid any breach of our obligations to third parties (including other clients, as applicable), any dissemination or distribution of the Services and Paid Services or any data or information identical to, or derived from, the Services or Paid Services by you and any Authorized User, other than as expressly permitted under this Agreement, shall be deemed a material breach of the terms of this Agreement.
You acknowledge and agree that we and our licensors own all intellectual property rights in the Services and Paid Services. Except as expressly stated herein, this Agreement does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or Paid Services.
We confirm that we have all the rights in relation to the Services and Paid Services that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of this Agreement.
To the extent that any Intellectual Property Rights are created in any Model Portfolio, such Intellectual Property Rights shall be your exclusive property. We hereby undertake not to assert any of our rights in any Model Portfolio against you, provided that you use of any Model Portfolio constitutes Acceptable Use. You hereby grant to us a worldwide, royalty-free, fully paid-up, irrevocable, non-exclusive, perpetual license to access, display, distribute, use, create derivative works, copy, modify, publish and maintain for our own purposes and for purposes of providing the Services and Paid Services, all such Model Portfolios, corresponding Model Investment Strategies and Client Data without any further consent, notice, fees and/or compensation to you, your Authorized Users or others.
To the extent you wish to utilise any part of the Services or Paid Services which generates factsheets, reports (including for regulatory purposes), and/or any other form of document, you hereby grant us the right to use any of your trademarks, service marks, names, logos, or other identifiers for the sole purpose of generating such factsheets, reports and/or documents.
DATA PROTECTION AND OTHER POLICIES
Both Parties will comply with laws which relate to the protection of personal data as such laws apply to them. If and to the extent that we collect users' personal data, we shall qualify as controller. We will handle all personal data in accordance with our Privacy Policy. In connection with the Services and Paid Services, Arabesque may (a) process users' personal data; and (b) transfer users' personal data inside of, and outside of, the European Economic Area.
For the purposes of this clause, the terms controller, personal data, process and processing shall have the meaning given to them in the UK's Data Protection Act 2018.
We maintain a Conflicts of Interest Policy and a Complaints Policy, a copy of which will be provided to you upon written request.
USER DATA
You grant to us a worldwide, royalty-free, fully paid-up, irrevocable, non-exclusive, perpetual license to access, display, distribute, use, create derivative works, copy, modify, publish and maintain for our own purposes and for purposes of providing the Services and Paid Services, all Client Data without any further consent, notice,fees and/or compensation to the Client or others. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to Client Data.
All Client Data uploaded onto the Platform using the Client's login credentials shall be deemed Client Data uploaded by you or any of you Authorized Users with your consent.
We are authorized to disclose Client Data in connection with its performance of the Services and Paid Services to (a) Third Party Data Providers, (b) third party subcontractors, and (c) our Affiliates.
We will follow our archiving procedures for Client Data as set out in our Back-Up Policy. In the event of any loss or damage to Client Data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by us in accordance with the archiving procedure described in the Back-Up Policy. We shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties subcontracted by us to perform services related to Client Data maintenance and back-up for which we shall remain fully liable).
LIMITATIONS
REPRODUCTION
NO RELIANCE
SECURITY
Users, either directly or through the use of agents, must not violate or attempt to violate the security of the Platform. Users must not use the Platform in a manner that threatens its integrity, performance, or availability, nor misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. Users must not or attempt to gain unauthorised access to the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform. Users must also not provide untruthful or inaccurate information, misrepresent the User's identity, or conduct fraudulent activities on the Platform.
By breaching any of said provisions, the User may commit a criminal offence under applicable law. Arabesque may report any such breach to the relevant law enforcement authorities and will co-operate with those authorities by disclosing the respective User's identity to them. In the event of such a breach, the User's right to use the Platforms will cease immediately.
SERVICE
Arabesque reserves the right to restrict, interrupt, cancel or terminate its service and access, in part or whole, to the Platform without prior notice. Furthermore, Arabesque does not guarantee that access to the Platform will be uninterrupted or, unless required by law, will always be available. Arabesque may suspend or withdraw or restrict the availability of all or any part of the Platform any reasons including for business and operational reasons.
DISCLAIMER OF WARRANTIES
The Services are provided to you on an "As Is" basis. All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
We make no representation to the accuracy or timeliness of the Services and are under no obligation or duty to determine whether the Services are current, suitable and/or fit for your purpose.
We do not warrant that:
a) your use of the Services will be uninterrupted or error-free;
b) the Services and/or the information obtained by you through the Services will fulfil your requirements;
c) the results that may be obtained from use of the Services and/or Paid Services including any Model Investment Strategy and/or Model Portfolio, will be accurate or reliable; or
d) the Services and/or Paid Services will be free from Vulnerabilities or Viruses.
We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services and Paid Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
Either Arabesque, a Third Party Data Provider, their affiliates or third-party licensors have exclusive proprietary rights in information on the Platform. You agree and acknowledge that Third Party Data is and shall remain the valuable intellectual property owned by, or licensed to, the applicable Third Party Data Provider, and no proprietary rights in Third Party Data is transferred to you.
To the maximum extent permitted by applicable law, neither any Third Party Data Provider nor any of its Affiliates makes any warranty as to the accuracy, adequacy or completeness of any Third Party Data, including without any limitation, any warranty of satisfactory quality or fitness for a particular purpose or use. Neither any Third Party Data Provider nor its affiliate shall have any liability for the accuracy or completeness of the information furnished on the Platform for delays, interruptions, any error or omission in any Third Party Data, and no Third Party Data Provider shall be liable for any lost profits, damages whether direct or indirect, special or consequential, resulting therefrom.
We may offer new 'Beta' features or tools with which you may experiment. Such features and tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Arabesque's sole discretion. The terms in this section apply with full force to such features or tools.
FORCE MAJEURE
Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for thirty (30) days, the Party not affected may terminate this Agreement by giving immediate written notice to the affected Party.
LIMITATION OF LIABILITY
Except as expressly and specifically provided in this Agreement, you assume sole responsibility for results obtained from your use of the Services and Paid Services, and for conclusions drawn from such use. Arabesque shall have no liability for any damage caused by errors or omissions or in any Client Data, or any actions taken by us at your direction.
Nothing in this Agreement excludes our liability for:
a) death or personal injury caused by our negligence; or
b) fraud or fraudulent misrepresentation.
Subject to the above clauses 52 and clause 53:
a) we shall not be liable to you or to any third party whether in tort (including for negligence or breach of statutory duty), contract (including under any indemnity), under any statute, misrepresentation, restitution or otherwise for any loss of profits, loss of business, loss of revenue, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement, even if we have been advised of the possibility of such loss or damages; and
b) our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees actually received by us from you during the 12 (twelve) months immediately preceding the date on which the claim arose.
Nothing in this Agreement excludes the liability of either Party for any breach, infringement or misappropriation of the other Party's Intellectual Property Rights.
You may not bring a cause of action under or related to this Agreement more than one (1) year after you knew or ought to have known of the cause of action, and in any event no more than one (1) year after the termination of this Agreement.
S&P Dow Jones Indices LLC ("S&P")
EXCEPT AS EXPRESSLY SET FORTH HEREIN, S&P, ITS AFFILIATES AND ALL OF THEIR THIRD PARTY LICENSORS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE S&P SERVICES, INCLUDING THE INFORMATION, DATA, SOFTWARE, APPLICATIONS OR PRODUCTS CONTAINED THEREIN OR THE RESULTS OBTAINED BY THEIR USE OR THE PERFORMANCE THEREOF. A reference to a particular investment or security in the S&P Services is not a recommendation to buy, sell, or hold such investment or security. NEITHER S&P, ITS AFFILIATES NOR THEIR THIRD PARTY LICENSORS GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE S&P SERVICES OR ANY COMPONENT THEREOF. S&P, ITS AFFILIATES AND THEIR THIRD PARTY LICENSORS SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS THEREIN. THE S&P SERVICES AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN "AS IS" BASIS AND USER'S USE OF THE S&P SERVICES IS AT USER'S OWN RISK.
TERM AND TERMINATION
GENERAL
VARIATION
We may unilaterally vary any provision of this Agreement and will give you notice thereof.
ASSIGNMENT
We may assign, transfer or subcontract this Agreement to any of our Affiliates without your written consent. You may not assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under this Agreement without our prior written consent.
NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between you and us, or authorize you to act as our agent, and you do not have the authority to act in our name or on our behalf or otherwise to bind us in any way.
NOTICES
Communications between the Parties shall primarily be via electronic means or over e-mail and you consent to receive communications and notices from us in an electronic form including via the Platform and/or e-mail. You are responsible for providing us with your most current e-mail address for this purpose.
Any notice given to a Party under or in connection with this Agreement (other than service of any proceedings and/or arbitration) shall be by e-mail to the following addresses: (a) Arabesque*: [email protected]*; and (b) You: to the email address provided by you during the sign-up process. In all cases as these may be updated from time to time.
Any notice shall be deemed to have been received if sent by e-mail, at the time of transmission, or, if this time falls outside the normal working hours on a Business Day in the place of receipt, when such working hours resume on the next Business Day.
ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter. Each Party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
NO THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or Party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
JURISDICTION
Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims.
PAID SERVICES
A User may become a Client by purchasing Paid Services, the details of which shall be set out in the Schedule.
We shall, during the Subscription Term, provide the Paid Services to you on and subject to the terms of this Agreement. If there is any inconsistency between any of the provisions in the main body of this Agreement and a Schedule, the provisions in the Schedule shall prevail.
If you have a Subscription, you may utilise the Paid Services during the Term, to enhance a chosen portfolio and/or generate one or more Model Portfolios for your Financial Products, as more particularly set out in the Schedule.
The Paid Services are intended solely for you. They are not intended for any other party including but not limited to your customer, and/or the public. We do not have any knowledge of, nor have we assessed the circumstances of, any of your customers. We shall not be responsible for any information given, provided or disclosed to any party (other than to you as our Client) regardless of whether such information is based on and/or includes any part of the Services, the Paid Services, the Model Investment Strategy or the Model Portfolio. You acknowledge that the Services and Paid Services are not designed to meet any of your investment objectives, needs or circumstances or any of your customers'. You shall perform your own investment analysis with respect to any and all investment decisions you make or recommends, including, but not limited to, the suitability of any Model Investment Strategy and Model Portfolio for the management of any Financial Product. You have exercised your own judgement in (i) disseminating any information, (ii) manufacturing and/or marketing any financial product, based on or including the Services, the Paid Services, Model Investment Strategy and/or Model Portfolio (or any part thereof), for the use of your customers and/or external persons and nothing in this Agreement shall be deemed to make any of your customers a client of Arabesque or otherwise create any duty on the part of Arabesque towards any customer or any of your other counterparts. You shall be solely responsible for adhering to all regulatory and legal duties owed to your customers.
You have made your own independent decision to subscribe for the Paid Services based upon your own judgment. Any use of the Paid Services and reliance on a Model Investment Strategy and/or a Model Portfolio is entirely at your own risk. No communication (written or oral) provided by us under or in connection with this Agreement will be deemed to be an assurance or guarantee as to the expected results of any security or investment referred to in any Model Investment Strategy and/or Model Portfolio.
The Services and Paid Services are unconnected to any of the asset management activities conducted within Arabesque's group of companies and is not a solicitation or an offer to buy any security or instrument or to participate in any trading. We do not provide execution services, are not responsible for the implementation of any Model Investment Strategy or Model Portfolio and are not acting as a fiduciary or investment manager to you or any of your customers. You have the ultimate and sole discretion in selecting any Model Investment Strategy and in implementing any Model Portfolio or Financial Product including but not limited to conducting any trading connected to or as a result thereof.
DELIVERY
We shall use commercially reasonable endeavours to make the Paid Services available to you 24 hours a day, 7 days a week, except for any maintenance or changes which may affect the Paid Services, and shall provide you with reasonable notice of any such anticipated maintenance or changes.
We may discontinue parts of the Paid Services as a result of a general product discontinuation or the unavailability of supplier or Third Party Data. In the event of any material change to the Paid Services, we will refund a pro-rata portion of any pre-paid Fees as your sole remedy.
Except where any non-conformance is caused by use of the Paid Services contrary to our instructions, or unlawful modification of the Paid Services, we undertake that the Paid Services will be performed substantially in accordance with commercially reasonable skill and care. If the Paid Services do not conform with this undertaking, we will, at our expense, use commercially reasonable endeavours to correct any such non-conformance, or provide you with a service that is a suitable alternative to the Paid Services. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the aforementioned undertaking.
NON EXCLUSIVITY
SUSPENSION OF SERVICE
LICENCE
Subject to the terms and conditions of this Agreement, we grant you a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to use (and for your Authorized Clients to use) the Paid Services in the Territory, during the Subscription Term solely for your Financial Products in accordance with the terms and conditions of this Agreement. These rights are granted solely to you, and not to any of your Affiliates.
The number of Authorized Users authorised to access and use the Paid Services shall not exceed the number set out in the Schedule. You are and shall remain responsible and liable for the actions of each Authorized User. You shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Paid Services and, in the event of any such unauthorized access or use, shall promptly notify us.
Each Authorized User is responsible for maintaining the confidentiality of his Login ID and password. Login ID and password, together with the e-mail address and any telephone number or other personally identifiable information of each Authorized User constitutes his "Registration Information". Each Authorized User is responsible for informing us of any changes to his Registration Information.
You may cite in a limited manner the Paid Services (for your customer and regulatory reporting purposes), provided that appropriate source footnotes and/or attribution are included. Guidance with respect to the appropriate footnote and/or attribution is available on the Platform and will be provided upon request.
You shall not, except to the extent expressly permitted under this Agreement:
a) attempt (i) to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or Paid Services in any form or media or by any means; or (ii) to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or Paid Services;
b) use the Services, Paid Services or Third Party Data, either by itself or to create derived data which constitutes a product to be commercialized by you or your customers such as an index, exchange trade fund, or any other financial product, or new data set;
c) access all or any part of the Services or Paid Services in order to build a product or service which competes with, or which would create a functional substitute for, the Services, Paid Services or the services of a Third Party Data Provider;
d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make the Services or Paid Services available to your customers and any third party;
e) refer to the Services or Paid Services in a way which implies (i) that they form part of the services or products offered to your customers or (ii) that we are responsible for the accuracy or quality of the Services or Paid Services or any other information or data that you provide to your customers;
f) infringe, violate, breach or otherwise contravene any rights in any jurisdiction in which we or any Third Party Provider is present in connection with the access or use of the Services or Paid Services, including any copyright, database right, trade mark, trade secret, patent, right of confidence or any other proprietary or intellectual property right or privacy right;
g) use any trademarks, service marks, names, logos, or other identifiers from the Services or Paid Services without our (and/or the relevant third party's) express prior permission;
h) violate, breach or otherwise contravene any rights in any jurisdiction in which we or any Third Party Provider is present in connection with the access or use of the Services or Paid Services, including any copyright, database right, trade mark, trade secret, patent, right of confidence or any other proprietary or intellectual property right or privacy right permissions; or
i) interfere with, or attempt to interfere with, the proper functioning of the Services or Paid Services or uses the Services or Paid Services in any way not expressly permitted by this Agreement.
Usage of these services are also subject to the following third-party terms:
a) User agrees that it shall not use nor permit use of the S&P Service(s) or any data included therein by any User with the creation, distribution, structuring, development, managing, trading, marketing and/or promotion of any financial instrument, portfolio or other investment product that is based on, or seeks to match the performance of, all or any portion of the S&P Service(s) or such data, such as, without limitation, a security, portfolio or account whose capital and/or income value is calculated based on changes in value of an S&P index or the components thereof, without a separate written agreement with S&P for such purpose;
b) User agrees that it shall not use or permit use of the S&P Service(s) to create Model Portfolios that have 1% or less tracking error to the S&P Index; and
c) S&P reserves the right to review any User agreement including but not limited to this Agreement on reasonable request to Arabesque.
THIRD PARTY INTELLECTUAL PROPERTY
S&P Dow Jones Indices LLC
Indices used on the Platform are a product of S&P Dow Jones Indices LLC or its affiliates ("S&P DJI"), and have been licensed for use by Arabesque AI Ltd. Standard & Poor's and S&P are registered trademarks of Standard & Poor's Financial Services LLC ("S&P"); Dow Jones is a registered trademark of Dow Jones Trademark Holdings LLC ("Dow Jones"); and these trademarks have been licensed for use by S&P DJI and sublicensed for certain purposes by Arabesque AI Ltd. Platform is not sponsored, endorsed, sold or promoted by S&P DJI, Dow Jones, S&P, their respective affiliates and none of such parties make any representation regarding the advisability of investing in such product(s) nor do they have any liability for any errors, omissions, or interruptions of the indices.
Copyright © 2024, S&P Dow Jones Indices LLC ("S&P DJI"). Reproduction of S&P Equity Unrestricted Data/End of Day Index Data in any form is prohibited except with the prior written permission of S&P DJI. S&P DJI does not guarantee the accuracy, adequacy, completeness or availability of any information and is not responsible for any errors or omissions, regardless of the cause or for the results obtained from the use of such information. S&P DJI AND ITS AFFILIATES DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. In no event shall S&P or its affiliates be liable for any direct, indirect, special or consequential damages, costs, expenses, legal fees, or losses (including lost income or lost profit and opportunity costs) in connection with subscriber's or others' use of S&P Equity Unrestricted Data/End of Day Index Data. The S&P Index is a product of S&P DJI, and has been licensed for use by Arabesque AI Ltd. S&P® is a registered trademark of Standard & Poor's Financial Services LLC ("S&P"); Dow Jones® is a registered trademark of Dow Jones Trademark Holdings LLC ("Dow Jones"); and these trademarks have been licensed for use by S&P DJI and sublicensed for certain purposes by Arabesque AI Ltd. Platform and any Model Portfolio and/or Strategy based on or derived from the Index is/are not sponsored, endorsed, sold or promoted by S&P DJI, Dow Jones, S&P, or their respective affiliates, and none of such parties makes any representation regarding the advisability of investing in any of the Model Portfolios and/or Strategies constructed by Platform nor do they have any liability for any errors, omissions, or interruptions of Platform.
All trade names, trademarks and service marks, and attendant goodwill, now owned by S&P (and/or its relevant subsidiaries) shall remain the sole property of S&P or its subsidiaries, and all rights accruing from their use shall inure solely to the benefit of S&P or its subsidiaries.
TYPES OF LICENCE
PAYMENT OF FEES
You shall pay us Fees for each Subscription. We shall issue an invoice prior to the Start Date. Each invoice is payable in full within thirty (30) days of the date of the Invoice. If we have not received full payment by the due date, interest shall accrue on a daily basis on any unpaid amount at an annual rate equal to 3% (three per cent.) over the Bank of England base rate. If payment remains outstanding 45 (forty-five) days after the due date of an invoice, we may, without any liability to you, suspend your account and your access to the Paid Services and we shall be under no obligation to provide the Paid Services while the invoice(s) concerned remain outstanding.
All amounts and Fees shall be payable in United States Dollars and are, subject to clause 75, non-cancellable and non-refundable. The Fees stated in this Agreement are exclusive of value added tax (VAT). You shall be liable for any VAT payable which shall be added to your invoice(s) at the appropriate rate.
If any deduction or withholding is required by law to be made from any payment due from you under this Agreement, you shall pay us, such additional amount as will, after such deduction or withholding has been made, leave us with the same amount as we would have received in the absence of any such deduction or withholding.
We may vary the Fees, at the start of each Renewal Term upon 60 (sixty) days' prior written notice, and the Schedule shall be deemed to have been amended accordingly. If you do not agree with any increase in the Fees, you have thirty (30) days to terminate the current Term by written notice. This right is in addition to your right to terminate for no cause as set out in clause 99 of this Agreement.
CLIENT OBLIGATIONS
You shall:
a) provide us with (i) all necessary co-operation in relation to this Agreement; and (ii) all necessary access to such information as may be required by us including but not limited to account information, daily holdings, cash positions, settled and unsettled transactions, and configuration Paid Services, in order for us to provide the Paid Services;
b) without affecting your other obligations under this Agreement, comply with all applicable laws and regulations with respect to your activities under this Agreement;
c) carry out all other responsibilities set out in this Agreement in a timely and efficient manner; and
d) obtain and maintain all necessary licences, consents, and permissions necessary for you to obtain, distribute and/or use any Third Party Data in the manner contemplated under this Agreement, use or access the Paid Services and/or for us, our contractors and agents to perform our obligations under this Agreement including, without limitation, the Paid Services;
You shall be solely responsible for selecting the preferences and parameters forming the basis of each Model Investment Strategy, assessing each Model Investment Strategy as being fit for purpose and suitable to form the basis for any Model Portfolio, and assessing the suitability of each Model Investment Strategy and Model Portfolio for your internal business use and/or application with regard to any Financial Product.
You must own all right, title and interest in and to all of the Client Data that is not personal data, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data, and shall assume all risks associated with the use of Client Data including in relation to any disclosure of Client Data that personally identifies you, an Authorized Clients, or any third party.
You shall comply with any additional terms required by Third Party Data Providers for your use of Third Party Data and shall be solely responsible for obtaining any authorisation or entering into any license agreement directly with a Third Party Data Provider. We may report your usage of Third Party Data to the Third Party Data Provider and may immediately terminate your access to Third Party Data for which you do not have valid authorization. For the avoidance of doubt, Arabesque is never obliged to provide any Third Party Data.
INDEMNITY
You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Paid Services, provided that:
a) you are given reasonably prompt notice of any such claim; and
b) we provide you with reasonable co-operation in the defence and settlement of such claim, at your expense.
We shall at our sole discretion, defend you, your officers, directors and employees against any claim that your use of the Paid Services in accordance with this Agreement infringes any United Kingdom patent, copyright, trade mark, database right or right of confidentiality effective as of the Start Date. In the event of any such claim, we may procure the right for you to continue using the Paid Services, replace or modify the Paid Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) Business Days' notice without any additional liability or obligation to pay liquidated damages or other additional costs to you
In no event shall we, our employees, agents and subcontractors be liable to you to the extent that the alleged infringement is based on:
a) a modification of the Paid Services by anyone other than us;
b) your use of the Paid Services in a manner contrary to the instructions given by us to you; or
c) your use of the Paid Services after notice of the alleged or actual infringement from us or any appropriate authority.
The foregoing and clause 95 state your sole and exclusive rights and remedies, and our (including our employees', agents' and subcontractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
TERM AND TERMINATION
Unless specified otherwise in the Schedule, this Agreement shall commence on the Start Date and shall continue for the Initial Subscription Term and shall automatically renew for successive Renewal Terms. This Agreement will not renew if you provide us with no less than ninety (90) days written notice before the end of the relevant Term, in which case this Agreement shall terminate upon the expiry of the current Term.
Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by written notice to the other if:
a) the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default for more than thirty (30) days;
b) the other Party commits a material breach of any other term of this Agreement and fails to remedy that breach, thirty (30) days after being notified in writing to do;
c) access to and/or use of the Paid Services (or any part thereof) has, pursuant to the judgment of a court of competent jurisdiction or a regulatory agency, becomes or is, unlawful or prohibited; or
d) the other Party's financial position deteriorates so as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
a) all licences granted under this Agreement shall immediately terminate and you shall immediately cease all use of the Paid Services;
b) we may destroy or otherwise dispose of any Client Data in our possession with no obligation to create back-up copies;
c) you must cease to use all data, Model Portfolio(s) and Model Investment Strategies received prior to termination; and
d) you must purge all such information from your storage and IT systems unless you are required to retain such information (or part thereof) pursuant to regulatory requirements or as part of your genuine record keeping or retention policies, or where it is not commercially feasible for you to purge the information due to the nature of storage. If you retain any information in accordance with the aforementioned, you may only retain that part of information which you are absolutely required to retain and the duty to purge and delete all other information still applies to the rest of the information.
The below definitions and rules of interpretation apply in this Agreement and the schedules.
Acceptable Use: acceptable uses of the Services as more particularly described in this Agreement. Acceptable Use does not include any use that is prohibited pursuant to the terms of this Agreement.
Affiliate: with respect to any entity, any other entity that directly or indirectly Controls, is Controlled by, or is under common Control with, the first entity.
Agreement: this agreement, comprising Part 1, Part 2, Part 3 and the Schedule.
Authorized Users: those employees, agents and independent contractors of the Client who are authorized by the Client to use the Services and/or Paid Services.
Back-Up Policy: Arabesque's Back-Up Policy available at www.arabesque.com or such other website address as may be notified to the Client from time to time, as such document may be amended by Arabesque in its sole discretion from time to time
Business Day: a day other than a Saturday, Sunday or public holiday in London, England when banks are open for business.
Client: a User who, while remaining a User, additionally subscribes for Paid Services (including during a Trial).
Client Data: the data inputted or provided by the Client, its Authorized Users, or Arabesque on the Client's behalf for the purpose of using the Services or facilitating the Client's use of the Services, including but not limited to any Third Party Data and personal data.
Complaints Policy: Arabesque's Complaints Policy is available upon request.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a Party or its Representatives (as defined below) to the other Party and that Party's Representatives whether before or after the date of this Agreement in connection with this Agreement, and all transactions pursuant thereto including but not limited to any information developed by the Parties in the course of carrying out this Agreement**.**
Conflicts of Interest Policy: Arabesque's Conflicts of Interest Policy is available upon request.
Control shall mean, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership, directly or indirectly, of more than 50% (fifty per cent.) of the shares, equity rights or voting rights or other interests of any such entity, and/or by contract.
FCA: the United Kingdom's Financial Conduct Authority, or any successor body from time to time.
Fees: the annual fees payable by the Client to Arabesque for the Services, as set out in the Schedule.
Financial Product: a financial product deriving from the Client's internal business operations (including, for the avoidance of doubt, in the provision of investment management and/or investment advisory services to any chosen fund, separately managed account, or similar product) using a Model Investment Strategy and/or a Model Portfolio as such financial products are set out in the Schedule.
Initial Subscription Term: the initial term of this Agreement as set out in the Schedule.
Intellectual Property Rights: means codes, algorithms, patents, utility models, rights in inventions, trademarks, service marks, rights in trade names, business names, logos, get-up and trade dress, rights in domain names and URLs, copyrights, design rights, database rights, rights in trade secrets and in confidential information, and all other similar rights in any part of the world, including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations.
Model Investment Strategy: a model investment strategy resulting from the Client utilizing the tools offered on the Platform, supplying data input, and self-selecting financial and non-financial preferences and/or parameters on the Platform.
Model Portfolio: a portfolio of weighted assets generated by the Client using the Services based on a Model Investment Strategy and rebalanced on a monthly or other mutually pre-agreed periodic basis.
Outstanding Fees: any Fees and charges (including any under payment) due from the Client and outstanding at or resulting from termination (whether or not due at the date of termination).
Paid Services: the paid services provided on the Platform to Clients from time to time.
Platform: means Arabesque's web-based investment technology platform available at https://app.arabesque.ai and/or any successor or replacement website owned and/or operated by Arabesque or its Affiliates that is designed to facilitate the construction of customized model portfolios as a service enabling the Client to create one or more Model Investment Strategies and/or to enhance a chosen portfolio with the use of artificial intelligence (AI). Once a Model Investment Strategy has been created, the Platform offers reporting and analytics on the historic performance of the Model Investment Strategy.
Privacy Policy: Arabesque's Privacy Policy available at www.arabesque.com/privacy-policy or such other website address as may be notified to the Client from time to time, as such document may be amended by Arabesque in its sole discretion from time to time.
Renewal Term: successive 12-month periods for which this Agreement shall be automatically renewed following the Initial Subscription Term.
Representatives: in relation to a Party, its employees, officers, contractors, subcontractors, representatives and advisers.
Services: the services provided on the Platform to Users from time to time.
Start Date: the date set out in the Schedule.
Subscription: the right to use the Services during the relevant Term subject to the payment of Fees.
Term: the Initial Subscription Term together with any subsequent Renewal Terms.
Territory: unless specified otherwise in the Schedule, the region where the Client's registered office is located.
Third Party Data: data provided and/or supplied by a party that is neither Arabesque's nor the Client's including but not limited to data vendors and a Third Party Provider is the provider of such data.
Third Party Data Provider: a provider of Third Party Data.
Trial: the right to use the Paid Services for a designated period of time, on a complimentary (no Fee basis), in accordance with the terms of this Agreement.
United States Dollars or USD: the lawful currency for the time being of the United States of America.
User: any person using the Platform at any time in any way, whether paying or not paying.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.